# THE ESTATE OF SUZANNE BARDZELL v. GOMPERTS

> District Court, D. New Jersey · April 22, 2021

URL: https://www.frixlaw.com/law-library/cases/10270469

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** April 22, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

THE ESTATE OF SUZANNE
Civ. No. 20-4555 (KM)(ESK)
BARDZELL,

Plaintiff, OPINION

v.

JESSICA GOMPERTS, et al.

Defendants.

KEVIN MCNULTY, U.S.D.J.:
Plaintiff Estate of Suzanne Bardzell seeks reconsideration of this Court’s
January 27, 2021 Order (DE 16)1 dismissing its Amended Complaint against
Defendants the Bergen County Prosecutor’s Office (“BCPO”) and BCPO
Assistant Prosecutor Jessica Gomperts (“AP Gomperts”). For the reasons
provided herein, I will deny Plaintiff’s motion for reconsideration. (DE 17).
I. Summary
The parties’ familiarity with the facts is assumed. This case arises from
an unimaginable tragedy, for which anyone must have sympathy. It is hard to
avoid the conclusion that the authorities should have done better here. Under
the law, however, compensation for the perpetrator’s criminal acts may not be
obtained from the county prosecutor.
On October 5, 2015, former New York Police Department (“NYPD”) Officer
Arthur Lomando broke into the home of Suzanne Bardzell, with whom he had

1 Citations to the record will be abbreviated as follows. Citations to page numbers
refer to the page numbers assigned through the Electronic Court Filing system, unless
otherwise indicated:
“DE” = Docket entry number in this case.
“Am. Compl.” = Plaintiffs’ Amended Complaint (DE 3)
been in a romantic relationship, and threatened to kill her with scissors.
Lomando stalked Bardzell, and she reported various incidents to the police.
The response of the authorities, particularly the BCPO and BCPO Assistant
Prosecutor Jessica Gomperts (“AP Gomperts”), is alleged to have been
inexcusably lax. On October 22, 2015, Lomando murdered Bardzell.
Plaintiff subsequently initiated a civil rights action, alleging a violation of
Bardzell’s right to be free from a state-created danger. The Amended Complaint
alleged, inter alia, that Defendants declined to bring appropriate charges
against Lomando, and did not take other steps that might have prevented him
from harming Bardzell.
On January 27, 2021, this Court granted Defendants’ motion to dismiss
the Amended Complaint, finding that Eleventh Amendment sovereign immunity
bars the claims against the BCPO and AP Gomperts in her official capacity, and
that absolute prosecutorial immunity bars the claims against AP Gomperts in
her individual capacity. Estate of Bardzell v. Gomperts, No. 20-4555, 2021 WL
288090, *8, 15 (D.N.J. Jan. 27, 2021). Plaintiff now seeks reconsideration.
II. Discussion
a. Legal Standard
In the District of New Jersey, motions for reconsideration are governed by
Local Civil Rule 7.1(i). Reconsideration is an “extraordinary remedy,” to be
granted “sparingly.” NL Indus. Inc. v. Commercial Union Ins. Co., 935 F. Supp.
513, 516 (D.N.J. 1996). A party seeking to persuade the court that
reconsideration is appropriate bears the burden of demonstrating one of the
following: “(1) an intervening change in the controlling law; (2) the availability of
new evidence that was not available when the court [issued its order]; or (3) the
need to correct a clear error of law or fact or to prevent manifest injustice.”
Max’s Seafood Café ex rel. Lou–Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d
Cir. 1999) (internal citation omitted); see also Crisdon v. N.J. Dep’t of Educ.,
464 F. App’x 47, 49 (3d Cir. 2012) (“The purpose of a motion for
reconsideration . . . is to correct manifest errors of law or fact or to present
newly discovered evidence.”) (internal citation omitted). “The Court will grant a
motion for reconsideration only where its prior decision has overlooked a
factual or legal issue that may alter the disposition of the matter.” Andreyko v.
Sunrise Sr. Living, Inc., 993 F. Supp. 2d 475, 478 (D.N.J. 2014).
b. Plaintiff’s Motion for Reconsideration
On reconsideration, Plaintiff submits that neither sovereign nor
prosecutorial immunity “exonerates a prosecutor who commits willful
misconduct during a criminal investigation, prior to the initiation of criminal
charges.” (DE 17-1 at 3). To that end, Plaintiff submits four reasons why I
should reverse dismissal of the action:
1. Absolute immunity does not apply to a prosecutor’s action taken prior to
the initiation of criminal changes (i.e., at the investigation stage).
2. Absolute immunity does not apply to shield willful misconduct.
3. Eleventh Amendment and absolute prosecutorial immunity raises factual
issues that cannot be decided on a motion to dismiss.
4. To the extent the immunity doctrines exonerate willful misconduct, they
should be revisited.
I will address each argument in turn.
i. Absolute immunity and investigative actions
First, Plaintiff submits that the court “fail[ed] to draw a line” between a
prosecutor’s investigative decisions, which it contends are entitled to only
qualified immunity, and other decisions which constitute prosecutorial
functions. (DE 17-1 at 5-6). As it did before the Court on Defendants’ motion to
dismiss, Plaintiff argues that absolute immunity “does not apply to a
prosecutor’s acts taken prior to the initiation of criminal charges.” (Id.). The
Third Circuit has rejected that very “line” that I am urged to draw: Odd v.
Malone, 538 F.3d 202, 210 (3d Cir. 2008) (“We have rejected bright-line rules
that would treat the timing of the prosecutor's action (e.g. pre- or post[-]
indictment), or its location (i.e. in- or out-of-court), as dispositive.”).
Bright-line rules aside, the Court did discuss the allegedly investigative
nature of AP Gomperts’s conduct and did address the application of immunity
to those acts. Estate of Bardzell, 2021 WL 288090, at *9-14. In analyzing each
alleged action (or inaction), the Court determined that absolute immunity
applied either because the conduct (1) fell within the category of a prosecutor’s
decision whether to initiate a prosecution, (2) concerned the selection or
limitation of criminal charges, or (3) related to the alleged failure of AP
Gomperts to protect Lomando through an order of protection or some other
means. Id. In particular, with respect to AP Gomperts’s alleged failure to collect
sufficient evidence and her instruction to the MPP that “there was no case”
against Lomando, I found that such conduct is closely associated with the
prosecution’s evaluation of the evidence and decision whether to initiate
charges, as opposed to the mere gathering of evidence. Id. at *9 (citing
Kulwicki v. Dawson, 969 F.2d 1454, 1463–64 (3d Cir. 1992) (“The decision to
initiate a prosecution is at the core of a prosecutor's judicial role. A prosecutor
is absolutely immune when making this decision, even where he acts without a
good faith belief that any wrongdoing has occurred.”) (internal citations
omitted)); Fuchs v. Mercer Cty., 260 F. App'x 472, 475 (3d Cir. 2008)
(“Prosecutors enjoy absolute immunity for the decision to initiate a
prosecution, for evaluation of evidence collected by investigators, and even for
failure to conduct adequate investigation before filing charges.”) (internal
citations omitted). Thus, the Court considered and rejected Plaintiff’s argument
that absolute immunity did not apply to AP Gomperts’s mere “investigative”
actions. Id.
In light of the analysis above, Plaintiff’s argument on reconsideration
cannot be that the Court “overlooked” the application of immunity to
“investigative” acts. Instead, Plaintiff disagrees with the Court’s assessment of
those acts, its rejection of the contention that AP Gomperts’s conduct was
merely investigative, and its decision that immunity applied. Mere continued
disagreement is not appropriately addressed on reconsideration. See Andreyko,
993 F. Supp. 2d at 478.
ii. Absolute immunity and willful misconduct
Next, Plaintiff argues that absolute immunity does not apply to a
prosecutor’s willful misconduct. (DE 17-1 at 7). As a threshold matter, I note
that nowhere in the Amended Complaint or in opposition to Defendants’ motion
to dismiss did Plaintiff contend that AP Gomperts’s engaged in willful
misconduct. The closest Plaintiff came to such argument was the allegation
that “Defendants were deliberately indifferent to Bardzell’s safety” and their
actions “revealed willful indifference to Ms. Bardzell.” (Am. Compl. ¶165). And,
in briefing, Plaintiff argued that Defendants were not entitled to sovereign
immunity because they “show[ed] favoritism, bias, and deliberate indifference
to ongoing domestic violence” which “suggests a deviation from classic law
enforcement functions better characterized as aiding and abetting the
deprivation of civil rights.” (DE 10 at 29). However, Plaintiff never went as far
as submitting that Defendants engaged in willful misconduct. (See Am. Compl.;
DE 10). An argument cannot be raised for the first time on reconsideration.
Summerfield v. Equifax Info. Servs. LLC, 264 F.R.D. 133, 145 (D.N.J. 2009).
Nevertheless, in an abundance of caution, I will discuss the merits of Plaintiff’s
newly raised contention.
In support of the contention that absolute immunity does not protect a
prosecutor’s willful misconduct, Plaintiff cites to two provision of the New
Jersey Tort Claims Act (“NJTCA”), neither of which was cited in Plaintiff’s
opposition to Defendants’ motion to dismiss. I also note that the Amended
Complaint does not contain a claim under the NJTCA. (See Am. Compl.).
However, Plaintiff submits that statutory immunity under the NJTCA is
analogous to prosecutorial immunity at common law. (DE 17-1 at 7 n.1). I do
not accept the claimed analogy, let alone the identity, between the two, but I
discuss the NJTCA briefly.
First, Plaintiff cites to N.J.S.A. 59:3-8, which establishes immunity for,
inter alia, the institution of judicial proceedings by a public employee. (DE 17-1
at 7). Then, Plaintiff cites N.J.S.A. 59:3-14(a), which provides that “nothing
shall exonerate a public employee from liability if it is established that his
conduct was outside the scope of his employment or constituted a crime,
actual fraud, actual malice or willful misconduct.” (Id.). Here, Plaintiff contends
that AP Gomperts lost her immunity because her conduct constituted such
fraud, malice, or willful misconduct. (Id. at 7-8). In particular, Plaintiff submits
that AP Gomperts “acted not for legitimate prosecutorial reasons, but rather to
assist Lomando and protect him from legitimate law enforcement efforts by the
police department.” (Id. at 7). Plaintiff, however, runs afoul of federal case law
holding that a prosecutor’s subjective motivation is irrelevant to determining
the application of absolute immunity. Kulwicki, 969 F.2d at 1464
(“Consideration of personal motives is directly at odds with the Supreme
Court’s simple functional analysis of prosecutorial immunity.”). Thus, even
accepting as true Plaintiff’s allegation that AP Gomperts chose not to charge
Lomando based on bias and favoritism, her decision not to initiate charges is
nonetheless protected by absolute immunity. See id.; see also Bernard v. Cty. of
Suffolk, 356 F.3d 495, 504 (2d Cir. 2004) (“Where, as in this case, a
prosecutor’s charging decisions are not accompanied by any such
unauthorized demands, the fact that improper motives may influence his
authorized discretion cannot deprive him of absolute immunity.”).
In addition to the NJTCA, Plaintiff relies on Doe v. Phillips, 81 F.3d 1204
(2d Cir. 1994)—a 27-year-old Second Circuit decision which it did not cite in its
original briefing—for the proposition that a prosecutor’s misconduct prevents
the application of absolute immunity. (DE 17-1 at 8). In that case, a prosecutor
instructed the plaintiff that he would dismiss charges against her if she
“sw[ore] to her innocence on a bible in church” Doe. 81 F.3d at 1207. Because
such conduct—demanding that plaintiff swear on a Bible in church—“was
manifestly beyond his authority,” the Second Circuit held that the prosecutor
was not entitled to absolute immunity. Id. at 1211.
The Doe Court “recognized that absolute immunity extends to a
prosecutor’s agreement to forgo prosecution in exchange for certain types of
concessions by the accused.” Id. at 1210. The demand for a religious oath in
church, however, is not one of those permissible “concessions”; it was “plainly
beyond the prosecutor’s jurisdiction,” so immunity did not apply. Id. at 1210-
1211 (internal quotation marks omitted) (quoting Schloss v. Bouse, 876 F.2d
287, 291–92 (2d Cir.1989)). Immunity did not apply precisely because there is
no prosecutorial function that involves compulsion of an oath in church, not
because the prosecutor engaged in “misconduct.” Indeed, Doe itself cited to at
least one case wherein the Second Circuit held that absolute immunity
attached while performing an advocative function regardless of alleged
misconduct. Id. at 1209-1210 (citing Dory v. Ryan, 25 F.3d 81, 83 (2d Cir.
1994) (prosecutor absolutely immune from liability on damages claim that he
conspired to present false evidence at criminal trial)).
Before this Court on Defendants’ motion to dismiss, Plaintiff never
argued that AP Gomperts engaged in conduct outside of her prosecutorial
function or authority. (See DE 10). It is true that Plaintiff argued AP Gomperts
was motivated by her subjective bias and favoritism in failing to prosecute
Lomando. But it was never alleged that Gomperts acted beyond the scope of a
prosecutor’s functions, e.g., by requiring a religious oath. Even now, Plaintiff
alleges that AP Gomperts had improper motives but not that she engaged in
non-prosecutorial conduct. (See DE 17-1 at 7-8 (submitting that AP Gomperts
chose not to charge Lomando “for an improper purpose.”). Plaintiff submits
that AP Gomperts’s actions were based on “personal predilection” or were taken
“for personal reasons” and “not for legitimate law enforcement reasons.” (DE
17-1 at 8). In other words, Plaintiff focuses on the reasons for and motivations
behind AP Gomperts’s actions; she alleges that Gomperts performed
prosecutorial functions in a wrongful manner. Plaintiff does not actually
submit that AP Gomperts engaged in conduct beyond the jurisdiction or
function of a prosecutor. (See DE 17-1). Therefore, Doe is not analogous.
Plaintiff also cites to the Fifth Circuit’s decision in Singleton v.
Cannizzaro, 956 F.3d 773 (5th Cir. 2009). (DE 17-1 at 9). There, the Court held
that prosecutors were not entitled to absolute immunity for the alleged creation
and use of fake subpoenas which were used to bluff or coerce cooperation from
potential witnesses. Such conduct, it found, was merely investigative and more
akin to police work than to the initiation of criminal charges. Id. at 784. The
Court explained:
Based upon the pleadings before us at this time, it could be
concluded that Defendants’ creation and use of the fake subpoenas
was not “intimately associated with the judicial phase of the
criminal process,” but rather fell into the category of “those
investigatory functions that do not relate to an advocate’s
preparation for the initiation of a prosecution or for judicial
proceedings.
Id. at 782 (emphasis added). Thus, contrary to Plaintiff’s assertion, the alleged
“misconduct” of the prosecutor did not factor into the Court’s analysis. In fact,
the Court explicitly stated that, in exercising their advocatory functions,
prosecutors are entitled to immunity even if they engage in willful misconduct.
Id. at 780 (“Prosecutors are absolutely immune even for ‘[w]ilful or malicious
prosecutorial misconduct . . . if it occurs in the exercise of their advocatory
function.’ But by the same token, ‘state prosecutors are not entitled to absolute
immunity when they perform functions other than their quasi-judicial
functions of ‘initiating prosecutions and presenting the State's case.’”) (internal
citations omitted). The point was that these counterfeit “subpoenas,” never
issued by any court, were not truly information-gathering subpoenas at all, but
investigative subterfuges.
As explained in the January 27 Opinion, I found that the allegations in
the Amended Complaint did not involve merely investigative functions. Instead,
the complained-of conduct related to AP Gomperts’s decision (1) not to initiate
criminal proceedings against Lomando, (2) to limit the charges in Bardzell’s
criminal complaint to third-degree offenses, and (3) not to issue a temporary
restraining order or order of protection. Estate of Bardzell, 2021 WL 288090 at
*9-14. Thus, Singleton is not analogous.
Because Plaintiff raises it for the first time on reconsideration and
because Plaintiff failed to demonstrate that the Court made a clear error of law,
I decline to grant reconsideration on the ground that AP Gomperts engaged in
allegedly willful misconduct.
c. Factual issues in determining applicability of immunity
Third, Plaintiff submits that “[o]nly upon completion of discovery, if
Plaintiff is unable to marshal sufficient evidence of willful misconduct, will
absolute immunity operate to exonerate Defendants at the summary judgment
stage of litigation.” (DE 17-1 at 10). This argument fails, in part, for the same
reason Plaintiff’s previous argument fails: if a prosecutor is engaged in an
advocacy function (e.g., if her actions are intertwined with initiating judicial
proceedings, see Odd, 538 F.3d at 208; Giuffre v. Bissel, 31 F.3d 1241, 151),
then her actions are protected by absolute immunity whether or not she
engaged in misconduct. Immunity depends on the nature of the function, not
the rightful or wrongful manner in which it is performed:
To give examples of prosecutorial activities protected by absolute,
as opposed to qualified, immunity, soliciting false testimony from
witnesses in grand jury proceedings and probable cause hearings
is absolutely protected. [citing Bums v. Reed, 500 U.S. 478 (1991)].
Use of the false testimony in connection with the prosecution is
absolutely protected. See id. at 1939 (eliciting false or defamatory
statements from witnesses in a judicial proceeding was immunized
at common law). Even interviews generating evidence to be
presented to a grand jury are absolutely protected. [citing Rose v.
Bartle, 871 F.2d 331 (3d Cir. 1989)] (prosecutor’s solicitation of
testimony for use in grand jury proceedings is “encompassed
within ‘the preparation necessary to present a case’ and therefore
[is] immunized as involving the prosecutors’ advocacy functions.”)
(citation omitted).
Kulwicki, 969 F.2d at 1465.
Indeed, the quote from Hill v. City of New York relied upon by Plaintiff
belies its argument:
[W]hen it may not be gleaned from the complaint whether the
conduct objected to was performed by the prosecutor in an advocacy
or an investigatory role, the availability of absolute immunity from
claims based on such conduct cannot be decided as a matter of
law on a motion to dismiss.
(DE 17-1 at 10 (quoting Hill v. City of New York, 45 F.3d 653, 663 (2d Cir.
1995) (emphasis added). In Hill, discovery was needed not to determine whether
the prosecutor engaged in misconduct but to determine “what function [he] was
engaged in” – i.e., whether he was acting as an investigator or as an advocate –
when he videotaped certain interviews. Hill, 45 F.3d at 663. Thus, it is
irrelevant for purpose of determining whether absolute immunity applies if
Plaintiff can “marshal sufficient evidence of willful misconduct.” It is the
function, not the alleged misconduct, that is dispositive. See, Kulwicki, 969
F.2d at 1465. Ordinarily that function can be gleaned from the face of the
complaint. And indeed, the immunity doctrine is designed to function at the
earliest possible stage; that is its purpose.
The same holds true for Eleventh Amendment immunity. The Eleventh
Amendment has been authoritatively interpreted to mean that states may not
be sued by private parties in federal court without consent. Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 98–99 (1984). As analyzed in my prior
opinion, that immunity applies to county prosecutors in their official
capacities, discharging their prosecutorial, as opposed to administrative,
functions. It is an immunity from suit, not an ordinary defense to an action.
Finally, I reiterate that, in the Third Circuit, the subjective motivation of
an individual prosecutor is irrelevant in assessing whether that prosecutor is
entitled to immunity. In Kulwicki, the plaintiff alleged that the defendant
prosecutor initiated criminal proceedings against him for purely political
motives. 969 F.2d at 1463. The Third Circuit noted that determination of
“whether absolute immunity is available for particular actions” is a “‘functional
analysis,” and that consideration of subjective or personal motivation “is
directly at odds” with that functional analysis. Id. at 1463-64. Because,
functionally, the prosecutor was absolutely immune in connection with the
decision to initiate charges, his political motivation in doing so did not matter.
Id. at 1464. As applied here, AP Gomperts’s allegedly improper motive in
declining to prosecute Lomando is a fortiori entirely irrelevant. See id. at 1463-
64 (“The decision to initiate a prosecution is at the core of a prosecutor’s
judicial role. A prosecutor is absolutely immune when making this decision,
even where he acts without a good faith belief that any wrongdoing has
occurred.”); see also Bernard, 356 F.3d at 507 (holding “that a political motive
does not deprive prosecutors of absolute immunity from suit for authorized
decisions made in the performance of their function as advocates.”). Therefore,
discovery is not needed to determine whether any of the alleged misconduct
(bias, favoritism, deliberate indifference) occurred.
d. Validity of current immunity doctrine
Lastly, Plaintiff argues that if immunity exonerates willful misconduct,
then the immunity doctrines should be revisited. (DE 17-1 at 11). To that end,
Plaintiff submits:
Plaintiff concedes that certain judicial opinions appear to cloak all
charging decisions in absolute immunity. See, e.g., Bernard v.
County of Suffolk, 356 F.3d 495, 504 (2004) (holding that
prosecutor engaging in an allegedly politically-motivated
prosecution was nonetheless entitled to absolute immunity, since
the decision to file charges was a prosecutorial function). It is
respectfully averred that these cases were wrongly decided because
the courts failed to draw the proper distinction between
investigatory or administrative functions as opposed to truly
prosecutorial or advocative functions. To the extent these cases
immunize wanton prosecutorial misconduct, then the immunity
doctrines themselves need an overhaul.
(DE 17-1 at 11).
Plaintiff’s argument is misplaced on a motion for reconsideration. The
remedy of reconsideration is to be granted “sparingly” and based only on the
presence of certain factors: “(1) an intervening change in the controlling law; (2)
the availability of new evidence that was not available when the court [issued
its order]; or (3) the need to correct a clear error of law or fact or to prevent
manifest injustice.” NL Indus. Inc., 935 F. Supp. at 516; Max’s Seafood, 176
F.3d at 677.
The alleged invalidity of current Third Circuit jurisprudence is not a
basis on which to grant reconsideration. I am bound by Court of Appeals
precedent unless and until that Court or the Supreme Court should alter it.
The proper channel to assert Plaintiff’s contentions is through appeal.
III. Conclusion
For the reasons set forth above, I will deny Plaintiff’s motion (DE 17) for
reconsideration. An appropriate order follows.
Dated: April 22, 2021
/s/ Kevin McNulty
____________________________________
Kevin McNulty
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10270469. Public record. Not legal advice.